PRESENT SENSE IMPRESSION – New York Appellate Digest

In a decision which affirmed the conviction and addressed several other important evidentiary issues, the Fourth Department noted that a statement identifying the defendant as the shooter made by a witness who did not see the shooting should not have been admitted under the present sense impression exception to the hearsay rule:

It is well settled that, in order “[t]o qualify as a present sense impression, the out-of-court statement must be (1) made by a person perceiving the event as it is unfolding or immediately afterward . . . , and (2) corroborated by independent evidence establishing the reliability of the contents of the statement” (id. at 382). Here, the witness did not see the shooting, and he confirmed defendant’s identity as the shooter only after questioning the victim (see People v Vasquez, 88 NY2d 561, 580; see also People v Brown, 104 AD3d 1203, 1204, lv denied 21 NY3d 1014). Therefore, the witness’s statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim’s identification of defendant as the shooter … . People v Mulligan, 2014 NY Slip Op 04588, 4th Dept 6-20-14

The Second Department determined a 911 recording of an anonymous caller was admissible under the excited utterance and present sense impression exceptions to the hearsay rule and the admission of the recording did not violate defendant’s right to confrontation:

The recording satisfied the excited utterance exception to the hearsay rule, since it evidenced that the caller was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication…. Contrary to the defendant’s contention, the recording was also properly admissible as a present sense impression, since the caller’s statements were sufficiently contemporaneous … and were corroborated by the evidence adduced at trial…. Additionally, the admission of the recording did not violate the defendant’s right to confrontation. The call was nontestimonial in nature, since its primary purpose was to obtain an emergency response to the shooting…. People v Dockery, 2013 NY Slip Op 04621, 2nd Dept, 6-19-13

Tag Archive for: PRESENT SENSE IMPRESSION

Statement Identifying Shooter Made by a Witness Who Did Not See the Shooting Should Not Have Been Admitted Under the Present Sense Impression Exception to the Hearsay Rule

Anonymous 911 Call Admitted Under Excited Utterance and Present Sense Impression Hearsay Exceptions

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